Speaker 1: Pushkin from Pushkin Industries. This is Deep Background, the show
Speaker 1: where we explore the stories behind the stories in the news.
Speaker 1: I'm Noah Feldman. If you're joining us for the first time, welcome.
Speaker 1: If you've missed any of our earlier episodes, which used
Speaker 1: to be behind a paywall, you can now get them
Speaker 1: for free exactly where you found this one. A bit
Speaker 1: about me. I teach constitutional law at Harvard. I love
Speaker 1: a well tailored suit, and I had a pretty eventful
Speaker 1: winter break. Do you swear or affirm, under penalty of
Speaker 1: perjury that the testimony you're about to give is true
Speaker 1: and correct to the best of your knowledge, information, and belief.
Speaker 1: So help you God. This past December, I was an
Speaker 1: expert witness called by the Democrats to testify at the
Speaker 1: impeachment inquiry and the House of Representatives into President Donald Trump.
Speaker 1: To be honest with you, it was extremely nerve racking.
Speaker 1: My job is to study and to teach the Constitution
Speaker 1: from its origins until the president. I'm here today to
Speaker 1: describe three things. Why the framers of our Constitution included
Speaker 1: a provision for the impeachment of the president. What that
Speaker 1: provision providing for impeachment for high crimes and misdemeanors means,
Speaker 1: and last, how it applies to the question before you
Speaker 1: and for the American people, whether President Trump has committed
Speaker 1: impeachable offenses under the Constitution. The other expert witnesses called
Speaker 1: by the Democrats were Pamela Carlin, a law professor at Stanford.
Speaker 1: When President Trump invited, indeed demanded, foreign involvement in our
Speaker 1: upcoming election, he struck at the very heart of what
Speaker 1: makes this a republic to which we pledge allegiance. And
Speaker 1: Michael Gerhart, a law professor at the University of North
Speaker 1: Carolina at Chapel Hill. If what we're talking about is
Speaker 1: not impeachable, then nothing is impeachable. I recently got the
Speaker 1: chance to talk to Michael Gerhart about that day and
Speaker 1: all that has happened since I was, unfortunately recovering from
Speaker 1: a slight cold. Michael, thank you so much for joining me.
Speaker 1: We've spoken on the phone, but we actually haven't seen
Speaker 1: each other since December fourth, when we both had the
Speaker 1: opportunity and maybe dubious honor of testifying at the House
Speaker 1: Judiciary Committees hearing on impeachment. How you've been doing since then?
Speaker 1: It's been busy teaching classes, and also trying to be
Speaker 1: part of the national conversation on a very important subject.
Speaker 1: What I would love for us to do in this
Speaker 1: conversation is open up for listeners some of the backstory
Speaker 1: and the back scenes of what we experienced that day,
Speaker 1: how we prepared for it, and also the sort of
Speaker 1: bigger picture of consequences of what's been going on. So
Speaker 1: maybe the way to start is I had never done
Speaker 1: this before, so it was all a surprise to me.
Speaker 1: But you had done this before twenty years previously, when
Speaker 1: they were a group of law professors, I think twenty
Speaker 1: one in total, who testified about Bill Clinton's impeachment to
Speaker 1: the House Judiciary Committee. And not only were you one
Speaker 1: of them, but you were also the only one who
Speaker 1: was jointly put forward by the Republicans and the Democrats.
Speaker 1: So take us back, if you will, twenty years and
Speaker 1: tell us how that happened. You know, nowadays it's almost
Speaker 1: inconceivable to imagine there being somebody who was acceptable to
Speaker 1: both sides. Well, twenty years seems a long time ago.
Speaker 1: It's going to seem even longer when we put together
Speaker 1: what was happening back then, it'll seem completely alien to us.
Speaker 1: So I had spent a fair bit of my academic
Speaker 1: career studying and writing about impeachment, also testifying and consulting
Speaker 1: with members of Congress. That was all known by the
Speaker 1: time we got to nineteen ninety eight, And there was
Speaker 1: a special moment for me in nineteen ninety eight when
Speaker 1: Jim Leech or Republican David Skaggs Democrat called me up
Speaker 1: on the phone and said, would you come talk to
Speaker 1: us in Washington? Generally, if members of Congress want to
Speaker 1: talk to me about something, I think that's a great honor.
Speaker 1: Night went and they said to me, well, what we'd
Speaker 1: like you to do after you talk to us right
Speaker 1: now is go speak to the entire House of Representatives.
Speaker 1: I didn't know that coming into that moment, and they
Speaker 1: had arranged like they wanted to speak to the House
Speaker 1: right then, Yes, right then. Um, so I thought, well,
Speaker 1: this is going to be a good test whether or
Speaker 1: not I know the subject matter. And so then we
Speaker 1: walked over to the House and I had to get
Speaker 1: special permission to walk onto the floor of the House
Speaker 1: and then behind closed doors with no staff, no press
Speaker 1: or anything. I then talked to the entire House of
Speaker 1: Representatives about impeachment. It's been about two hours doing it.
Speaker 1: No no cameras, nothing, nothing, just nothing. It was all
Speaker 1: Is there a written record of your coup? Don't think
Speaker 1: there's a written record. I think it was also amazing.
Speaker 1: You had a confidential conversation with four hundred and thirty
Speaker 1: five people. Hard to the biggest lecture of my life
Speaker 1: or one of the biggest lectures, but it was. I
Speaker 1: tried to design more as a conversation, and it was
Speaker 1: a very congenial, collegial conversation. At the end of it,
Speaker 1: Charles Kennedy, Republican, Bobby Scott, a Democrat who happened to
Speaker 1: be my representative, came up to me and said, well,
Speaker 1: if you have have a hearing on this, would you come,
Speaker 1: And I said, well, think sure, I'd be honored. And
Speaker 1: then that hearing to which you just alluded happened a
Speaker 1: few weeks later, where I was then brought in by
Speaker 1: both the Republicans and Democrats to testifize one of the experts,
Speaker 1: one of the many experts, including Alan Dershowitz, on the
Speaker 1: question of whether or not President Clinton's alleged misconduct rose
Speaker 1: to the level of being an impeachable offense and what
Speaker 1: did you say. What I talked about was basically the
Speaker 1: law of impeachment. I tried to kind of lay out
Speaker 1: the things we knew that I thought were clear, and
Speaker 1: then kind of talked about some things that maybe unsettled,
Speaker 1: and said, here's what we know about them. Here are
Speaker 1: the arguments on both sides, and kind of walked everybody
Speaker 1: through that and then got questions. But there was no
Speaker 1: personal attack. It was always very much you know, in
Speaker 1: this footnote you said this, but now today you're saying
Speaker 1: that fair I can try and answer that. Did they
Speaker 1: actually give you a chance to answer it? I say
Speaker 1: that in light of our experiences this time around. They
Speaker 1: asked a question and then they actually let you answer it.
Speaker 1: It's like, you know, as you said, it sounds like
Speaker 1: the Middle Age, that's right. Yeah, So when we had
Speaker 1: our hearing, there was no chance to answer it, or
Speaker 1: at least we were given maybe a second and then
Speaker 1: that was about it. But yes, they would then give
Speaker 1: me a chance to answer it, and they appeared to
Speaker 1: be listening, and it was really more of a conversation
Speaker 1: than twenty years later it would be. It's sort of
Speaker 1: fascinating on many levels, but one of the reasons it's
Speaker 1: so fascinating is that most people at the time identified
Speaker 1: the impeachment of Bill Clinton, that moment as a high
Speaker 1: point in partisanship, the most partisan moment that people could
Speaker 1: remember in the United States and more than a century.
Speaker 1: And I think that was actually a fair assessment in
Speaker 1: historical terms. And now twenty years later, it sounds almost
Speaker 1: like a model of bipartisan cordiality and collegiality, even if
Speaker 1: they voted along party lines. Let me ask you a question, Michael, So,
Speaker 1: the reason you found yourself in that extraordinary position in
Speaker 1: the Clinton impeachment is that you were and remain the
Speaker 1: leading expert law professor on the subject of impeachment. Your
Speaker 1: Guide to the Impeachment Process book, you know, has come
Speaker 1: out and I think three editions. Now, why in the world,
Speaker 1: as a young law professor did you get interested in
Speaker 1: the impeachment as the topic? It was not a hot topic,
Speaker 1: you know when they lated eighties, when you must have
Speaker 1: started diving into it, or the middle ladies, when you
Speaker 1: started diving into it. Why did you choose the subject? Well,
Speaker 1: that's a good question. I grew up Jewish and Alabama
Speaker 1: in the nineteen sixties that that a lot comes with that.
Speaker 1: That's a big sentence where in Alabama mobile Okay, got it,
Speaker 1: And so I was my entire childhood was sort of
Speaker 1: shaped and defined by the Civil Rights movement. At the
Speaker 1: tail end of that civil rights movement was of course Watergate.
Speaker 1: So like many people of my generation, I watched Watergate.
Speaker 1: I was kind of thought it was an incredible moment
Speaker 1: to see the Congress sort of investigating the president and
Speaker 1: eventually the president resigned, and that that stuck with me.
Speaker 1: That was something that I felt the Civil Rights movement
Speaker 1: and the Watergate had in common a respect for the
Speaker 1: rule of law. I had in common the idea that
Speaker 1: law could bring order to chaos, and so that was
Speaker 1: very appealing to me. I had an interest in the
Speaker 1: law as a result. And I think one thing that's
Speaker 1: common about impeachment and importance for me is there not
Speaker 1: just academic areas of interest. There are areas where I
Speaker 1: feel like, as a lawyer and law professor, I have
Speaker 1: a duty to try to speak truth to power and
Speaker 1: to be a part of the process which enriches my
Speaker 1: understanding and that I hope I can bring that to
Speaker 1: my students. So let's fast forward then to now. So
Speaker 1: When I got the call in November saying, you know,
Speaker 1: might you be open to testifying? I took a long,
Speaker 1: deep breath, I said yes. And the next thing I
Speaker 1: did as soon as I got off the phone is
Speaker 1: I dove into the books and I massively read every
Speaker 1: letter that I could find on impeachment. And I was
Speaker 1: the whole time struck by just how much ground I
Speaker 1: had to cover. Because although I teach constitutional law like
Speaker 1: you do, I added a constitutional law casebook, impeachment appears
Speaker 1: on like one page of a twenty five hundred page casebook. Now,
Speaker 1: you must have been in a completely different situation because
Speaker 1: you literally wrote the book. Well, I should say you're
Speaker 1: a wonderfully quick study, and of course you've mastered it
Speaker 1: very well. Um, I don't know how. I don't know
Speaker 1: how quick it was, but it was hard. Now, well,
Speaker 1: in constutional time, it was quick, Yeah, exactly. I got
Speaker 1: the call. Actually, I think my call came the morning
Speaker 1: of Thanksgiving. Um, you know, I knew this hearing was
Speaker 1: coming up. I didn't have any I just I knew
Speaker 1: it was going to be important hearing, But I didn't
Speaker 1: necessarily know or think that I would be any part
Speaker 1: of it. I still would be I would care about
Speaker 1: it deeply, so I was following it. But then I
Speaker 1: did get a call Thursday morning saying, Okay, would you
Speaker 1: be willing to come testify? And then once I realized, okay,
Speaker 1: I am going to do this, UM, I did a
Speaker 1: little bit of study, but a lot of what I
Speaker 1: tried to do was sort of sit back and think
Speaker 1: about what's important for people to know and tried to
Speaker 1: pull together what I thought would be a very helpful
Speaker 1: narrative on how impeachment applies to the current situation. And
Speaker 1: so that became my focus. And one thing the course
Speaker 1: that stood out for me was how one of the
Speaker 1: critical things we see even now it was apparent back then,
Speaker 1: but we hear this and everything the president's lawyer is saying.
Speaker 1: I think we see this and everything the president does,
Speaker 1: and that is that all of that has in common
Speaker 1: the effort to make the president a monarch, perhaps even
Speaker 1: one could go so far as to say a tyrant,
Speaker 1: and that is not consistent with our Constitution in any way,
Speaker 1: shape or form. So having come to that conclusion, which
Speaker 1: I don't think was a hard one to reach, I
Speaker 1: then sort of built a case around did you sense
Speaker 1: before going in, Did you know this was going to
Speaker 1: be the kind of partisan battle royale that it sort
Speaker 1: of turned into. And were you comfortable inwardly with the
Speaker 1: idea that you were going to be able to say, look,
Speaker 1: according to the facts as they've been released in the
Speaker 1: House or discover in the House, if they're true, then
Speaker 1: the president deserves to be impeached under the Constitution, which
Speaker 1: is obviously what we both did say. But were you
Speaker 1: did you have any trepidation about that? Well, it's a
Speaker 1: good question I had already once I realized I guess
Speaker 1: I was going to be there. One of the other
Speaker 1: first things that occurs to me is to understand the venue,
Speaker 1: to understand the forum. And I was fairly fortunate in
Speaker 1: that I already testified in front of the Judiciary Committee
Speaker 1: on July twelfth basically about the Mother Report. So at
Speaker 1: that hearing in July twelfth, people came at after me
Speaker 1: rather personally, and I somehow survived, And I knew that
Speaker 1: this other hearing was going to be even more vicious.
Speaker 1: So my instinct was in that circumstance to dial it down,
Speaker 1: not to kind of meet them at the same level
Speaker 1: of yelling and screaming and personal attacks, but to try
Speaker 1: and sort of lower the temperature and make sure that
Speaker 1: whatever I was saying, and of course you were doing
Speaker 1: this as well, but to make sure everything I was
Speaker 1: saying was firmly grounded in the law. So if you
Speaker 1: if you know what you're saying is firmly grounded in
Speaker 1: law and it's backed up, you can have a lot
Speaker 1: of confidence when people come at you and attack you
Speaker 1: because you know the facts and you know the law,
Speaker 1: and you can then move forward on that basis. If
Speaker 1: you don't have those things on your side, I think,
Speaker 1: like the White House laws currently, you make things up.
Speaker 1: You know, you engage in a lot of inconsistent statements.
Speaker 1: But I felt the law was on our side. Let's
Speaker 1: talk a little bit about style in the presentation, because
Speaker 1: as you said, you were extremely calm throughout. I would
Speaker 1: say you were the calmest of the three of us,
Speaker 1: you and me and Pam Carlin. Was that fully your plan?
Speaker 1: Because I have to say, as I walked into that
Speaker 1: room with all of the cameras, I mean, I knew
Speaker 1: the cameras would be there. I knew it would be
Speaker 1: surrounded by you know, photographers. I knew they would melt
Speaker 1: away like a magic curtain, and behind them would be
Speaker 1: a whole walls worth of Judiciary Committee members. So I
Speaker 1: knew it in theory, but I kept on thinking of
Speaker 1: that expression of Mike Tyson's where he said everyone has
Speaker 1: a plan until they get punched in the face. And
Speaker 1: you know, that's sort of what it felt like to me.
Speaker 1: I walked in there with a plan, and I then
Speaker 1: felt just by the reality of it, it was like
Speaker 1: a punch in the face. And then I'm more or
Speaker 1: less adapted on the fly, and I think I changed
Speaker 1: the tone of my presentation and the tone of my
Speaker 1: answers based on the energy in the room. And I
Speaker 1: think I had the inward experience of feeling, Okay, you're
Speaker 1: about to open your mouth and say in substance that
Speaker 1: the presence of the United States is guilty of high
Speaker 1: crimes and misdemeanors. And logically speaking, although it's the choice
Speaker 1: of the House ought to be impeached, that's really a
Speaker 1: big deal. And it's not a time for half measures.
Speaker 1: It's not a time to say it as a on
Speaker 1: the one hand, or on the other hand, I think
Speaker 1: if I thought to myself, if I don't say it, definitively,
Speaker 1: clearly and bluntly, and again and again and again, the
Speaker 1: message really might not get through. And I don't think
Speaker 1: I really got that until I was sitting in the chair.
Speaker 1: Were you able to more or less? Was the strategy
Speaker 1: that you followed, the kind of the calm, rational one.
Speaker 1: Was that a strategy that that was the one you
Speaker 1: had going in. I'm not sure I had a well
Speaker 1: defined strategy going in other than kind of what I've said,
Speaker 1: other than I guess what is my typical temperament and disposition.
Speaker 1: And so what I felt at the time was I've
Speaker 1: got to get a feel for this room so very
Speaker 1: much like what you were saying, and that would help
Speaker 1: you know you know this very well. I think one
Speaker 1: problem for a lot of lawyers, particularly young lawyers, is
Speaker 1: they don't think about the forum. They don't think about
Speaker 1: the venue. They would argue the same way in a
Speaker 1: trial quarter as they would in congress or somewhere else.
Speaker 1: That's not a good move. You've got to be aware
Speaker 1: of who's listening, and you've got to be aware of
Speaker 1: your audience. And so part of what I was I
Speaker 1: felt I had to do was, Okay, I got to
Speaker 1: get a feel for that so many respects. The hardest
Speaker 1: moment is that first minute. Thank you, mister Chairman, ranking member,
Speaker 1: or other distinguished members of the committee. It's an honor
Speaker 1: and a privilege to join the other distinguished witnesses to
Speaker 1: discuss a matter of grave concern to our country and
Speaker 1: to our constitution. Because this House, the People's House, has
Speaker 1: the sole power of impeachment. There is no better forum
Speaker 1: to discuss the constitutional standard for impeachment and whether that
Speaker 1: standard has been met in the case of the current
Speaker 1: President of the United States. Where you're finding your voice
Speaker 1: and where you're trying to figure out what's the right tone.
Speaker 1: How do I play this room, so to speak. I
Speaker 1: don't want to diminish it by saying that, but I
Speaker 1: have to perform in these conditions, not academic conditions or
Speaker 1: something else. And so I once I got that feel,
Speaker 1: and I did have the benefit of following both you
Speaker 1: and Pam, so I was able to kind of studying
Speaker 1: and not just hear what y'all were saying, but also
Speaker 1: study the circumstances, which in some respects made me calmer
Speaker 1: because I felt I had a better grasp on the conditions.
Speaker 1: And then I kind of tailored my remarks. Accordingly, that's
Speaker 1: a great observation and it helps me to explain something
Speaker 1: that I was feeling before I started speaking, which was
Speaker 1: since I was the first witness, I had no idea
Speaker 1: what the tone in the room was. I mean, the
Speaker 1: Chairman Gerald, now they're set to start speaking. Professor Feldon,
Speaker 1: you may begin, and immediately the ranking Republican Doug cons
Speaker 1: interrupted me. Mister chairman before we get the chairman and
Speaker 1: members of the committee, mister Chairman have emotion. So that
Speaker 1: was already, you know, weird, and I wasn't clear on
Speaker 1: whether I should continue speaking or stop speaking, so I
Speaker 1: sort of stopped and then I started again. Mister Chairman
Speaker 1: and members of the committee, thank you very much for
Speaker 1: the opportunity to appear. And in my head, the blood
Speaker 1: was rushing and my heart was pounding, and I was
Speaker 1: just thinking to myself, I really don't want to sound nervous,
Speaker 1: and actually, at the end of my prepared statement, I
Speaker 1: thought to myself, well, Noah, you must have sounded very,
Speaker 1: very nervous. On the basis of the testimony and the
Speaker 1: evidence before the House, President Trump has committed impeachable high
Speaker 1: crimes and misdemeanors by corruptly abusing the office of the presidency.
Speaker 1: And it was only when I went back and watched
Speaker 1: myself on videotape that I realized that. Luckily, by trying
Speaker 1: to be forceful, I think I suppressed the shakiness in
Speaker 1: my voice and the you know, and the pounding heart,
Speaker 1: and I think maybe I almost had to be forceful
Speaker 1: in order to mask the fact that, you know, there
Speaker 1: was something nerve wracking about being the first one. I
Speaker 1: felt like I was speaking into the void. And I
Speaker 1: don't think I really understood why that was so painful,
Speaker 1: or not painful it is the wrong word, but why
Speaker 1: it was so challenging until you just talked about getting
Speaker 1: the feel of the room. It's hard to get the
Speaker 1: feel of the room when you're supposed to be the
Speaker 1: first person to talk. So that brings us to the
Speaker 1: public's reaction, which we didn't know when we were in
Speaker 1: the room, thank goodness, but which we discovered pretty clearly
Speaker 1: when we came out and turned on our phones. I mean,
Speaker 1: for me, a really dramatic moment was when we left
Speaker 1: at the very end of the day, this long, grueling day,
Speaker 1: nine plus hours. I think we were in there and
Speaker 1: someone from the Sergeant at Arms Office of the House
Speaker 1: was there to meet us in the witness room and said, Pam,
Speaker 1: you know, I hate to tell you this, but you're
Speaker 1: getting death threats. And you know, that was pretty shocking moment,
Speaker 1: certainly for me to hear, and I imagine for Pam
Speaker 1: as well, and it didn't really let up. Now. I
Speaker 1: think Pam unquestionably got the worst of it. I think
Speaker 1: a large part of that is good old fashioned misogyny.
Speaker 1: I think, you know, a woman taking on the president
Speaker 1: of the the United States is going to just get more
Speaker 1: and deeper negativity than men are. She also got, as
Speaker 1: I got, and as you got, a huge amount of
Speaker 1: negative commentary. I should say, I think I got about
Speaker 1: as much positive as negative. You know, huge numbers of
Speaker 1: people's coming out of the woodwork. You know, I knew
Speaker 1: you in summer camp. Thank you for your service to
Speaker 1: the country. Strangers writing that, lots of very uplifting stuff,
Speaker 1: but also a really strong thread of pretty vicious negativity.
Speaker 1: And at least in my instance, and we should talk
Speaker 1: about whether you had this experience too, A lot of
Speaker 1: it was anti semitic. A lot of the negative stuff
Speaker 1: was anti semitic. I'm wondering first of all, was that
Speaker 1: was that your experience? And then we should talk about
Speaker 1: how it felt that was mostly my experience. I mean,
Speaker 1: I guess the first thing I should mention is for me,
Speaker 1: the hate mail hugely outnumbered anything else it was. It
Speaker 1: may have been not just ten to one, it could
Speaker 1: be more. I think it's more like one hundred and one.
Speaker 1: I expected some of that. I don't know that I
Speaker 1: could expected, you know, the volume of it, and it
Speaker 1: was exactly the kind of vituol you described. It was
Speaker 1: very hateful, lots cursing, lots of profanity, and lots of
Speaker 1: declarations that you know you don't know X and you
Speaker 1: know you should be fired. And and yes, a lot
Speaker 1: of it was anti Semitic, and so that that was
Speaker 1: like a tidal way. And I got some very nice
Speaker 1: emails and even letters. And one thing that's very striking
Speaker 1: and actually very meaningful for me is that I heard
Speaker 1: from a lot of people that I grew up within
Speaker 1: forty years ago in Alabama, and they were very nice,
Speaker 1: remarkably kind, and very thoughtful, and that was I don't
Speaker 1: know that I expected. It was very nice. I think
Speaker 1: the level of anti semitism was more extreme this time
Speaker 1: than I've ever experienced it in this setting. I mean,
Speaker 1: obviously when I grew up, I experienced it a great deal.
Speaker 1: Well you say something about that, you say, you say obviously,
Speaker 1: But I think a lot of people, especially you know,
Speaker 1: let's say our kids age, don't really know what it
Speaker 1: would have been like to be a Jewish kid in Mobile,
Speaker 1: Alabama when you were growing up in the sixties and
Speaker 1: early SEVENTIESE what what was that like? I mean, how
Speaker 1: how did you experience anti Semitism as a kid? Was
Speaker 1: it was it comments? Was it people picking fights with you?
Speaker 1: How did it? How did it work? Yes? It was
Speaker 1: comments and it was fights. I got beaten up a
Speaker 1: fair bit. And you're a big guy, and you were
Speaker 1: a serious athlete, right, I mean, weren't you? Well I was.
Speaker 1: I read somewhere you were the number two tennis player
Speaker 1: in the state of Alabama, So you were you were
Speaker 1: a jock, and they were still coming after you. Yeah.
Speaker 1: Well you can imagine that you, as tennis player in
Speaker 1: football country was not exactly you know, a model citizen.
Speaker 1: Um and so um it manifested itself in all sorts
Speaker 1: of different ways. Yes, people in school would say nasty things,
Speaker 1: and certainly, both in school and out of school, I
Speaker 1: would get beaten up somewhat regularly, um and um. And
Speaker 1: although I was a competitive tennis player back at this
Speaker 1: period of time, I could not play in any country
Speaker 1: clubs because all the country clubs barre Jewish members. And
Speaker 1: so whenever there was a tennis tournament in a country
Speaker 1: club in those days, there were a lot of tennis
Speaker 1: tournaments in country clubs, I could not play, Wow, because
Speaker 1: it wasn't just that. So it wasn't just that you
Speaker 1: couldn't be a member. It was more like a segregation model. Yeah,
Speaker 1: literally could not go into the club. That's play Becauespecially
Speaker 1: there must have been other kids playing who weren't members,
Speaker 1: but they weren't Jewish, that's correct. Wow. And so I
Speaker 1: could play in public courts, but I couldn't play in
Speaker 1: private courts basically. And did that do you think affect
Speaker 1: you when you started getting you know, one hundred to
Speaker 1: one ratio of of hate mail with a lot of
Speaker 1: any Semitism? I mean, did was it upsetting? I don't.
Speaker 1: I don't know what the word would be. It's disturbing,
Speaker 1: I don't, Yeah, Um, I think it's it's really sad
Speaker 1: um and I think it was upset more from my
Speaker 1: family because their threats made against my family as well.
Speaker 1: So we had to get campus police UM and the
Speaker 1: local police in Chapel Hill to kind of monitor our home,
Speaker 1: and they're still coming by occasionally, goodness, check on our home. Upsetting.
Speaker 1: The law school has essentially raised my information and you know,
Speaker 1: I'm not I didn't ask for this, but the law
Speaker 1: school decided maybe the best response was less pretend like
Speaker 1: he's not here, so they took all indications of my office,
Speaker 1: my phone, my email, everything's gone. So it's a weird feeling.
Speaker 1: It's it's ironic. You're you're the most famous professor and
Speaker 1: there's no information about you on the website except that
Speaker 1: you are their most famous professor. Yeah. Well yeah, and
Speaker 1: somehow disappeared. Yeah wow. And and maybe some of this
Speaker 1: has to do with a little bit of being the
Speaker 1: south of the Chapel Hills. It's one of the great
Speaker 1: college towns. It's not an anti Semitic in any way
Speaker 1: shape course, of course, And so I think that it's um.
Speaker 1: So some of it did feel from your arn and
Speaker 1: maybe that just provoked to me a feeling of great
Speaker 1: sadness that after so many years, you know, I've come
Speaker 1: full circle. You know, I think you know what you're saying.
Speaker 1: First of all, I feel deep sympathy for you. I
Speaker 1: it's a reminder to me that you know, we've all
Speaker 1: we've we both have the white man privilege, which is
Speaker 1: a good privilege to have in life. But there's an
Speaker 1: extra privilege that I have of being in the Northeast
Speaker 1: and from a generation that didn't really experience any over
Speaker 1: anti semitism. You know, no getting beaten up, you know,
Speaker 1: certainly no inability to you know, play in a in
Speaker 1: a club. You mentioned your family. One of the pleasures
Speaker 1: for me of the whole long day was getting to
Speaker 1: spend a little bit of time in the witness room
Speaker 1: with your son Noah, who came and sat behind you
Speaker 1: during the entire hearing. What was his takeaway from the
Speaker 1: from the whole day? And he seems incredibly smart, incredibly focused,
Speaker 1: you know, knew all the details. Half the time. I
Speaker 1: thought to myself, maybe he should be up there testifying
Speaker 1: inside of me. Um, what what was it? What was
Speaker 1: his ultimate takeaway from the whole day? Well, that's very sweet,
Speaker 1: So thank you for saying that, and he said he
Speaker 1: saw you later in the airport as well, So yeah,
Speaker 1: we did see each other in the air I really
Speaker 1: then I was drinking a very large Manhattan and I
Speaker 1: would have invited him to join me, but he was not.
Speaker 1: He was not of itch, that's right. But but thank
Speaker 1: you for for all that. Um. This is my seventeen
Speaker 1: year old son. He's very interested in politics. It's very
Speaker 1: interested in the Constitution. But um and also, by the way,
Speaker 1: incredibly proud of his Jewish identity, and so he I
Speaker 1: think had asked me at some point, maybe way back
Speaker 1: in the summer, he said, well, Dad, if you end
Speaker 1: up he's hurt in our household. That I testified the
Speaker 1: Clining hearing. So at one point he said, you know, Dad,
Speaker 1: if you get invited, would you take me? And I
Speaker 1: said sure, what Dad? Would you know? You say sure?
Speaker 1: And then the day came and the first thing he said,
Speaker 1: after I you know, I mentioned that this had keim.
Speaker 1: He said, well, you promised, you promised to take me,
Speaker 1: So I did, and he paid very close attention. He
Speaker 1: was very incredibly sensitive to everything going on in the room,
Speaker 1: but also very aware. And if you see the videos
Speaker 1: of me testifying, you'll see him looking around the room
Speaker 1: a lot behind me, so he was absorbing it, and
Speaker 1: I think he was really struck by the really harsh partisanship.
Speaker 1: The tone just stunned him. The fact that people could
Speaker 1: talk that meanly to other people. You know, there is
Speaker 1: we've kind of touched on this a little bit. If
Speaker 1: you're concerned about equality, and we all are, it's remarkable
Speaker 1: when you're in a room like that and you have
Speaker 1: members of the House of Representatives yelling and screaming down
Speaker 1: at you, and here's the thing you cannot yell and
Speaker 1: scream back. True. That is the essence of inequality, I think,
Speaker 1: where they are using their position in a way to
Speaker 1: demean you. And my son really picked up on that.
Speaker 1: He thought it was just I can't even put in
Speaker 1: your superlatives here. He was just absolutely outraged by that.
Speaker 1: That's fascinating. Yeah, I'm glad you made that point, Michaelin.
Speaker 1: It brings me to my last question, and that has
Speaker 1: to do with how you think about our roles as
Speaker 1: law professors. Here. I have to say a couple of
Speaker 1: my most cynical friends, one of whom is actually a
Speaker 1: Trump person, you know, said to me privately, you know
Speaker 1: what were you doing out there sounding like you can
Speaker 1: speak on behalf of the constitution. In fact, someone said
Speaker 1: to me, you sound like a rabbi and synagogue trying to,
Speaker 1: you know, say what the toura means. And you know,
Speaker 1: my answer was, Okay, I'll take that analogy because part
Speaker 1: of my job as a law professor is to teach
Speaker 1: students and to teach them that there are two sides
Speaker 1: to every question. But that doesn't mean I can't believe
Speaker 1: that one of the answers is true. And in this instance,
Speaker 1: I felt like my job as a law professor was
Speaker 1: actually to stand up and say not on the one hand.
Speaker 1: On the other hand, but actually, this is what the
Speaker 1: constitution means. This isn't a hard case. The frameworks were
Speaker 1: really clear. They specifically talked about these issues. It's not like,
Speaker 1: what did the founding fathers think about smartphones when they
Speaker 1: never heard of a smartphone? This is what did they
Speaker 1: think about the distortion or presidential election? Well, as a
Speaker 1: matter of fact, they talked about it. What did they
Speaker 1: think about, you know, bribery, As a matter of fact,
Speaker 1: they talked about it. So I was sort of willing
Speaker 1: to embrace the idea that sometimes our job is to
Speaker 1: be kind of secular priests of the constitutional faith, you know,
Speaker 1: to stand up and speak on behalf of the constitution.
Speaker 1: You know, some of our colleagues think we shouldn't do that.
Speaker 1: Do you share some instinct that you know that is
Speaker 1: actually our role in those circumstances? Yes, I do share that.
Speaker 1: So there are two points, and I think that's really
Speaker 1: the first point. Another way to put it is that
Speaker 1: I actually do believe in expertise, and I believe in facts,
Speaker 1: and I think that somebody who spends a lot of
Speaker 1: time studying something and has thought about it and analyzed
Speaker 1: it and read about it and sort of come up with,
Speaker 1: let's say, supportable insights and useful sort of thoughts about it,
Speaker 1: ought to share that expertise. So that's the first reason.
Speaker 1: But the second is I tell this to my class
Speaker 1: all the time, and I feel, to some extent this
Speaker 1: is our duty as well. One of the first things
Speaker 1: I always say, although fewer and fewer students are aware
Speaker 1: of this story, the great story about the Emperor's new clothes,
Speaker 1: and how what a lawyer has to do I think
Speaker 1: is have the courage to be able to say I
Speaker 1: don't think he has any clothes on. This comes back
Speaker 1: from my background and growing up in Alabama. Somebody has
Speaker 1: to be able to say, this is what a lawyer
Speaker 1: most useful function is. I think, hold on, now, that's
Speaker 1: a violation of the law. There's something bigger than us
Speaker 1: here and we have to recognize that. And that bigger
Speaker 1: thing is the Constitution. And if I think it's being breached,
Speaker 1: and I'm thoughtful and I'm doing this in good faith,
Speaker 1: I think I have a duty to express that. Michael,
Speaker 1: thank you for being a model to me of what
Speaker 1: it is to be an expert, what it is to
Speaker 1: believe that there is truth about the Constitution, and what
Speaker 1: it is to go out there and tell people what
Speaker 1: that truth is. Really. Thank you so much. Thank you
Speaker 1: such a great role model, and thanks thanks for this
Speaker 1: great conversation. It's great to talk to you. Thank you. Noah.
Speaker 1: Since Michael and I spoke, the impeachment trial has ground
Speaker 1: to a premature halt. As of this moment, it seems
Speaker 1: overwhelmingly likely that by the end of the day, the
Speaker 1: Senate of the United States is going to vote on
Speaker 1: whether to remove the president, and almost certainly it will
Speaker 1: vote not to remove him, and that it's going to
Speaker 1: do so without ever hearing any witnesses at all. That
Speaker 1: reason is a really fundamental question was the trial legitimate
Speaker 1: in the first place. This is going to be a
Speaker 1: difficult and controversial issue that Democrats and Republicans are going
Speaker 1: to continue to fight about for quite some time. You
Speaker 1: can expect Democrats to point out that never in the
Speaker 1: history of the United States Senate has there ever been
Speaker 1: an impeachment trial without witnesses before. You can also expect
Speaker 1: Democrats to say that the basic definition of a trial
Speaker 1: requires looking at some sort of evidence, whether it's witnesses
Speaker 1: or documents or something, and that therefore this really didn't
Speaker 1: count as a trial, and that the Senate in some
Speaker 1: sense failed to fulfill its constitutional responsibilities. On the Republican side,
Speaker 1: you can expect people to say, not only now, but
Speaker 1: well into the future, that the Senate just didn't have
Speaker 1: to consider anything more than the evidence that had been
Speaker 1: brought by the House. Some Republicans will say, as some
Speaker 1: are saying right now, that even if all of the
Speaker 1: charges against Donald Trump were true, they didn't rise to
Speaker 1: the level of an impeachable offense. Others will take the
Speaker 1: position that even if Trump did all of the things
Speaker 1: he was accused of doing. There was just nothing wrong
Speaker 1: with it at all. The judgment of history on this
Speaker 1: question is likely to remain mixed for some time, but
Speaker 1: that's not the most important point. The most important point
Speaker 1: is that future Senates are going to look back on
Speaker 1: what this Senate did and treat it as at least
Speaker 1: a somewhat convincing precedent for how they should act. It
Speaker 1: will no longer be possible to say that at every
Speaker 1: single impeachment trial since the beginning of the Republic there
Speaker 1: have always been witnesses, because now there will have been
Speaker 1: a trial with no witnesses at all. I should add
Speaker 1: that we did not get here overnight. Over time, the
Speaker 1: Senate has increasingly been willing to listen to witnesses who
Speaker 1: were not appearing directly in front of it, but who
Speaker 1: gave depositions behind closed doors which could then be watched
Speaker 1: indirectly as excerpts by the senators. On the surface, that
Speaker 1: might not sound like it was such a deviation from
Speaker 1: the tradition of hearing witnesses directly, and maybe it didn't
Speaker 1: seem so at the time, but in retrospect, it's really
Speaker 1: clear that not hearing directly for witnesses was one step
Speaker 1: along the way to a Senate that felt it did
Speaker 1: not need to hear witnesses at all. We even heard
Speaker 1: in this trial Republicans saying the rather shocking proposition that
Speaker 1: it was the job of the House of Representatives together
Speaker 1: all of the evidence, as though it weren't also the
Speaker 1: job of those who were running the trial to hear
Speaker 1: that evidence for themselves, as they had always done previously.
Speaker 1: The thing about impeachment is that precedent changes very slowly.
Speaker 1: Because we don't have very many impeachments to judge from.
Speaker 1: I think that it's inevitably the case now that we
Speaker 1: will come to see this trial as having been whether
Speaker 1: legitimate or not, one option available to the Senate. If
Speaker 1: we have a democratic president and a democratically controlled Senate,
Speaker 1: you will hear Democrats, not Republicans, saying, you know what,
Speaker 1: we don't absolutely need to have witnesses, because after all,
Speaker 1: they didn't have them the last time. In the long run,
Speaker 1: then we won't be debating the legitimacy of the trial
Speaker 1: or the fairness of the procedures. We'll just be debating
Speaker 1: whether to follow those procedures again the next time. After all,
Speaker 1: it's within the constitutional power of the Senate to decide
Speaker 1: if the trial that it conducted counted as a trial
Speaker 1: or not. And if you leave it to somebody to
Speaker 1: be the judge in his own cause, you can be
Speaker 1: pretty confident that he'll find himself not guilty. Now it's
Speaker 1: time for a segment I'll be doing every week called Playback.
Speaker 1: I'll choose a moment in the news, play it back
Speaker 1: to you, and then I'll try to make some sense
Speaker 1: out of it. Here's this week's major market alert. Stocks
Speaker 1: plunging is the spread of coronavirus rattles investors, But now
Speaker 1: the SMB and AZDAC all posted their biggest losses of
Speaker 1: the year by far. That's a clip from CNBC's Brian
Speaker 1: Sullivan about the impact that the coronavirus has been having
Speaker 1: on the markets, and where something affects the markets, before
Speaker 1: too long, it's going to start affecting the real economy too.
Speaker 1: How worried should we really be about the effect that
Speaker 1: the coronavirus might have on the global exchange of trade,
Speaker 1: which is so significantly affected by China. The answer to
Speaker 1: that question is one of the classic instances of questions
Speaker 1: that have to be answered by virtue of uncertainty. It's
Speaker 1: uncertain because all we have to go on is the
Speaker 1: experience of happened when China was struck by the Stars
Speaker 1: virus nearly twenty years ago, and that experience is very
Speaker 1: far from exact when it's compared to what we're dealing
Speaker 1: with now. First of all, those are two different viruses,
Speaker 1: and they might spread through the population in significantly different ways.
Speaker 1: Second of all, China's role in the international economy has
Speaker 1: expanded drastically since the last time, So all anyone can
Speaker 1: do is make a little bet about what the probabilities
Speaker 1: are that, in fact, we're going to be profoundly affected
Speaker 1: globally by a process in which China might become largely
Speaker 1: cut off from many of the supply chains in which
Speaker 1: it's presently centrally engaged. The markets are simply one measure
Speaker 1: of one collective group of people, acting individually, not coordinating
Speaker 1: with each other, making bets and gambles on the probability
Speaker 1: that this will happen, and the market is gambling from
Speaker 1: a standpoint of very significant ignorance. Now it may seem
Speaker 1: monstrous to try to make economic money making predictions and
Speaker 1: bets that are intended to pay off for the people
Speaker 1: making those bets on the basis of disease. But that's
Speaker 1: just business as usual for economic markets, which after all,
Speaker 1: have as their purpose trying to make a buck on
Speaker 1: the vicissitudes of human affairs. The markets as of this
Speaker 1: moment seem to think that the dangers of the coronavirus
Speaker 1: profoundly disrupting the global economy are relatively small. Among the epidemiologists,
Speaker 1: the prevailing view seems to be that the coronavirus is
Speaker 1: not one of those viruses that's susceptible to extraordinarily rapid spreading,
Speaker 1: infecting everybody who comes into any form of contact with
Speaker 1: those who have the disease. But notice that the epidemiologists
Speaker 1: are themselves little different from the people making bets in
Speaker 1: the markets. That is, they're just engaged expressing a statistical
Speaker 1: probability of what they think will happen, based on imperfect
Speaker 1: models and highly dissimilar past events. So what we're dealing
Speaker 1: with really is a set of statistical predictions by epidemiologists,
Speaker 1: and then a set of statistical predictions by people in
Speaker 1: the market who are betting on the bets of those epidemiologists.
Speaker 1: In their first place it's probabilities on probabilities. All this
Speaker 1: reminds me of a famous line by the Supreme Court
Speaker 1: Justice Oliver Wendell Holmes Junior. He was talking about the
Speaker 1: freedom of speech and the American system of government, and
Speaker 1: he said that the American system of government is at
Speaker 1: any rate an experiment, as all life is an experiment.
Speaker 1: What Holmes meant when he said all life is an
Speaker 1: experiment is that every day, and in almost every way,
Speaker 1: we are betting our future on probabilities, hundreds or thousands
Speaker 1: of probabilities of events taking place according to our expectations.
Speaker 1: We do our best, not because that's so great, not
Speaker 1: because it's good enough, but because it's our only option.
Speaker 1: Deep background is brought to you by Pushkin Industries. Our
Speaker 1: producer is Lydia gene Kott, with studio recording by Joseph
Speaker 1: Fridman and mastering by Jason Gambrel and Jason Roskowski. Our
Speaker 1: showrunner is Sophie mckibbon. Our theme music is composed by
Speaker 1: Luis Garat Special thanks to the Pushkin Brass Malcolm Gladwell,
Speaker 1: Jacob Weisberg, and Mia Lobel. I'm Noah Feldman. You can
Speaker 1: follow me on Twitter at Noah R. Feldman. This is
Speaker 1: deep background